Haryana

Karnal

CC/706/2022

Rita Choudhary - Complainant(s)

Versus

Sunniva Promotors Private Limited - Opp.Party(s)

19 Jun 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                      Complaint No. 706 of 2022

                                                      Date of instt. 13.12.2022

                                                      Date of Decision:19.06.2024

 

Rita Choudhary (aged about 55 years), wife of Shri Subhash K Chaudhary, resident of house no.1521, Sector-13, Karnal, aadhar UID 5755 3766 9404.

 

                                               …….Complainant.

                                              Versus

 

1. Sunniva Promotors Pvt. Ltd., CIN U74899 DL 2005 132391 registered as real estate co with roc New Delhi sales and Project Head Office at Palm Residency.

Complex Sector 36, Karnal and registered office at 812A, Chgiranjiv Tower,Nehru Place, New Delhi-110019, phone no.81306 91152 through its Directors.

2. Shri Vikas Sharma, Director Sunniva Promotors P Ltd. DIN 06839498 Residing Address at house no.1944 Sector 7, Urban Estate Karnal-132001. Phone no.92553 82187.
3. Shri Rajesh Bhjatia, Director Sunniva Promotors Pvt. Ltd. DIN 08366241 c/o Bhatia Motors, Palm Enclave, Nr. Palm Residency Karnal and ITI Chowk, Karnal-132001 phone no.94160 30806.
4. Shri Anil Kumar Director Sunniva Promoters Pvt. Ltd. DIN 09669055 joined w.e.f. 14^th July 2022 as per website care head office/Registered office.
5. Shri Anil Gupta Major Equity holder phone no.9999908733 in the company/group companies viz ras Developers Pvt. Ltd. joint venture.

at aforesaid registered office and other group companies addresses viz mentioned at ras basera, sector-16, G.T. Road, Taraori, Karnal-132116 203, Chiranjiv Tower, 43, Nehru Place, new Delhi 110019.

Email address:anil_gupta1963 @yahoo.com; cs@jaihouse; Ras Operation;ani_786@yahoo.com;Rasindiainfo; Palm Residency; info @jaihouse.net.

 

…..Opposite Parties.

       

Complaint Under section 35 of the Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.

              Shri Vineet Kaushik…….Member

      Dr. Suman Singh….Member

  

Argued by:  Complainant in person.

                    Shri Ankush Kapoor, counsel for the OPs

 

                    (Jaswant Singh, President)

 

ORDER: 

                        

                 The complainant has filed the present complaint Under section 35 of the Consumer Protection Act, against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant purchased a flat K-306 in K Tower in Palm Residency Complex, of sixe 1530 sq. ft. consisting of 3 Bed Rooms with attached bath room, kitchen, lobby room, store room and balconies with other attachments, fitting, fixtures and other furnishing items etc. in sector 36, Krnal vide seals and allotment letter dated 21.06.2017 against the consideration of Rs.33,00,000/- . At the time of sales, the complainant has declared land ownership with possession of area of approximately 5.03 acres of project area construction license no.456 dated 10.02.20226 issued by District Town and Country Planning of State Government as part flat k-306 of project mentioned by OP no.1 in document. At the time of issue of aforesaid sales cum allotment letter flat K-306 in K Block to complainant, said flat was in construction stage for completion and a payment of Rs.30,00,000/-was made to OP by through bank drafts. In the allotment letter as full payment till completion with special reference of due date of delivery of possession of flat is mentioned for completion delivery before October month of 2017 and in extreme eventuality of delay after 31.03.2018 (as per agreement and August 2017 as per booklet) delay compensation @ Rs. 5 per sq. ft. area of 1530 with total per month payable amount of Rs.7650/- is payable by OP as clause agreed upon in sales letter and subsequent fitout possession letter till completion is payable by builder with further mentioned provision of reserved right of complainant; the buyer to claim refund of the entire money alongwith interest etc. payable from the date of payment if completion not provided as agreed upon in writing by the OP. OP provide fitout physical possession and complete ownership rights of flat no.K-306, vide fitout possession letter cum undertaking dated 27.10.2020. OP no.1 has also provided physical space of 96 sq. ft parking etc. all in vicinity of same K Tower block as part of flat sale agreement with furthermore clear confirmation of full and final payment paid after discount adjust etc. till fitout possession and that nothing more is payable by complainant at any stage. OP no.1 has issued subsequently a re-confirmation certificate of No Dues letter issued on 22.02.2021 duly signed by Shri Vikas Sharma as authorized signatory who is also director of the company. The letter states discount offered of Rs.30,00,000/- on account of delay and electrical items materials supplied by complainant to OPs who vide this said letter dated 22.02.2021 has confirmed full and final payment adjusted as sum total of Rs.33,00,000/-, considered made by buyer; with no further payment liability of any amount on any account whatsoever at any stage on her part as buyer expect additional electric meter cost which is again paid per receipt issued to buyer in her name with flat no.k-306 mentioned. OP through all these communication/letters signed and issued by Shri Vikas Sharma as authorized signatory and director of the company, further indemnified complainant with responsibility undertaken on behalf of company. The OP to assure complainant will get completion certificate at early date and with occupancy certificate and registration with local revenue authorities which has not taken place for building completion is still not progressed for completion certificate not received by OP, hence no occupancy certificate is a failure on the part of the OP. Complainant made various emails/personal written and verbal representation for non-fulfillment of the promises including delay in getting occupation certificate, which has caused undue harassment to complainant. In absence of completion letter issued by Government, occupancy certificate by OPs and subsequent registry of ownership with revenue authorities/tehsil has not been performed but to no avail. It is further alleged that the following work are not completed at the site, which are reproduced as under:-

1. Electricity equipment is not comprehensively complete.
2. Plaster was not done properly with a wide dampness on outer and inner walls.
3. The door/s half broken; latches were not properly fitted.
4. The cracks filled up by the wall putty and toilet commode was unfixed.
5. The electricity supply remains an issue as the electric meter is controlled by some third part who charges an arbitrary amount without even consumption.
6. The car parking facility provided is misused.

Complainant has completed all full and final total sales amount consideration while execution of the sale deed in favour of complainant originally before 31.03.2018 not executed as OP failed to get building completion till date. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence complainant filed the present complaint seeking direction to provide occupancy certificate without any further delay and execute sale/conveyance deed of the flat K-306 registered in favour of the complainant, to provide Rs.9,00,000/- as compensation on account of spent on some defect removal; further delay; mental pain, agony, financial opportunities loss and unfair trade practice, harassment, Or to provide alternate plot site in the vicinity of block complex as has been provided to  Shri Om Parakash Girdhar Ji Project Manager, to get deficiencies in flat and building removed/rectified, car parking area be cleared for proper use and any other relief to which complainant found entitled to like.

2.             On notice, OPs appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that complainant after satisfying herself of the goodwill and reputation of the OPs, purchased a flat bearing no.306, in Palm Residency, Sector-36, Karnal, a project being developed by the OP. The total cost of the flat purchased by the complainant was Rs.33,00,000/-. An allotment cum sale letter in respect of the flat in question was issued in favour of the complainant on 21.06.2017. Out of the total cost, complainant had paid an amount of Rs.30,00,000/- at the time of issuance of the aforesaid allotment cum sale letter and it was agreed that the balance amount of Rs.3,00,000/- shall be paid by her at the time of delivery of possession of the flat to her by the OP. At the time when the flat in question was allotted to the complainant, construction of the flat was in full swing and as such, the OP had in the allotment cum sale letter dated 21.06.2017 stated that it shall deliver possession of the flat to the complainant on or before 31.03.2018. Inspite of all efforts made by the OP, due to certain unavoidable circumstances and outbreak of covid-19 pandemic in the country, the OP could not deliver possession of the flat within stipulated period and actual possession of the plat could be delivered to the complainant only on 27.10.2018. The OP completed the construction of the flat as per agreed terms and conditions and complainant had taken possession thereof after satisfying herself as there is no deficiency in the quality of construction, material used by the OP in respect of the flat in question. It is further pleaded that the complainant was well aware that the OP has already applied with the competent authority for grant of completion/occupancy certificate in respect of residential complex developed by it, that the OP acted bonafidely and that the delay caused in completion of the construction was beyond the control of the OP.  The complainant was also aware that the conveyance deed/sale deed in respect of the flat in question could be executed by the OP in her favour only on receipt of the requisite completion/occupancy certificate, which may take some time and as such, it was agreed between the complainant and the OPs and in order to compensate the complainant for the delay caused in delivering possession of the flat in question, the time which is likely to be taken by the competent authority to issue the requisite completion/occupancy certificate and registration of conveyance deed/sale deed in her favour, the OP company shall forego the balance amount of Rs.3,00,000/- payable by the complainant to it. The complainant has malafidely, mischievously stated that in the complainant that the OP company offered a discount of Rs.3,00,000/- on the total sale consideration of the flat whereas in fact that the said amount of Rs.3,00,000/- was agreed to be foregone by the OP in order to compensate the complainant for the delay caused in completion of construction and the time which is likely to be taken in future, for obtaining the requisite completion/occupancy certificate and registration of the requisite conveyance/sale deed in respect of the flat in question, in favour of the complainant. The complainant did not raise any issue regarding the alleged delay or regarding quality of construction or the material used or the facility/ies provided in the residential complex developed by the OP or in the flat purchased by her at the time of taking possession of the said flat nor she raised any claim regarding delay in obtaining completion/occupancy certificate or regarding execution of conveyance deed/sale deed in her favour till date, as all her claim/s have already been settled by the OP. The delay caused in completing the construction of the flat was beyond the control of the OP, OP had completed the construction of the residential complex developed by it as per approved plans and had submitted the requisite application for grant of completion/occupancy certificate with the competent authority, the entire construction has been raised as per norms and there was absolutely no reason for the OP to pay any amount as compensation to the complainant or to compensate the complainant in any way or manner but as a goodwill gesture, OP without any default on its part, reduced the total sale consideration payable by the complainant to it from Rs.33,00,000/- to Rs.30,00,000/-, thus compensating the complainant to the tune of Rs.3,00,000/-. The complainant has now turned dishonest and now after more than two years of obtaining possession of the flat, has filed the present complaint on false, frivolous grounds against the OP in order to extract more amount illegally. It is further pleaded that after taking the possession of the flat in question, the complainant rented out the same and is earning profit out of the flat. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Complainant has tendered into evidence her affidavit  Ex.CW1/A, copies of letters dated 21.07.2017 Ex.C1 and Ex.C2, copy of Fit Out Possession Cum Undertaking for flat in question Ex.C3 and Ex.C4, copy of letter dated 22.02.2021 regarding Confirmation Certificate for No Dues Ex.C5, copy of complaints Details Ex.C6, copy of letter dated 23.03.2023 of Aerens Palm Residency Resident Welfare Association Ex.C7, photographs of site Ex.C8 to Ex.C19 and closed the evidence on 10.05.2023 by suffering separate statement.

5.             On the other hand, learned counsel for the OPs has tendered into evidence affidavit of Om Parkash Girdhar authorized representative Ex.OP1/A, copy of sales and allotment letter Ex.OP1, copy of possession letter Ex.OP2, copy of confirmation certificate for No Dues Ex.OP3, copy of letter dated 04.02.2020 to Director General Ex.OP4, Board Resolution Ex.OP5 and closed the evidence on 07.12.2023 by suffering separate statement.

6.             We have heard the complainant and learned counsel for the OPs and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Complainant, while reiterating the contents of the complaint, has submitted that on 21.06.2017, she has purchased a flat in the project of the OPs, for the sale consideration of Rs.33,00,000/- and paid Rs.30,00,000/- to the OPs.  As per the Agreement, OPs failed to complete the development work within stipulated period and also failed to hand over the physical possession of the flat in question. OPs are enjoying her hard earned money from the date of its deposit till the possession of the flat. She further submitted that OPs are failed to provide occupancy certificate despite repeated request to the OPs. The material used by the OPs are very low quality and she has spent Rs.9,00,000/- to remove the defects in the flats and lastly prayed for allowing the complaint.

8.             Per contra, learned counsel for OPs, while reiterating the contents of written version, has vehemently argued that the possession of the flat could not be delivered within stipulated period due to unavoidable circumstances and outbreak of Covid-19 pandemic in the country. OPs have already given a discount of Rs.3,00,000/- on account of delay in possession. There is no deficiency in service on the part of OPs and lastly prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, complainant purchased the flat in the project of the OPs for the sale consideration of Rs.33,00,000/- and complainant deposited Rs.30,00,000/- with the OPs. It is also admitted that OPs had given the discount of Rs.3,00,000/- on account of delay in possession to the complainant.

11.             As per the Allotment letter Ex.OP1 dated 21.06.2017 the OPs were bound to offer the possession of the flat in question upto 31.03.2018 and also bound to complete the development work of the flat in all respect.  On account of delay of possession, OPs had given Rs.3,00,000/- discount to the complainant and complainant had accepted the said discount without any protest. Thus, delay for offering the possession has already compensated by the OPs.

 12.          In the present complaint, complainant has sought the following reliefs from the OPs, which are as under:-

1.     To provide occupancy certificate without any further delay and execute sale/conveyance deed of the flat K-306 registered in favour of the complainant.

2.    To provide Rs.9,00,000/- as compensation on account of  spent on some defect removal, further delay; mental pain, agony, financial opportunity loss cost and unfair trade practices, harassment,

OR in lieu provide alternate plot site in the vicinity of block complex as has been provided to  Shri Om Parakash Girdhar Ji Project Manager,

(iii)  To get deficiencies in flat and building removed/rectified.

(iv)   Car parking area be cleared for proper use

        and any other relief to which complainant found entitled to like.

 13.          Complainant has paid the entire sale consideration and despite of that OPs neither provided the occupancy certificate nor execute the sale/conveyance deed of the flat in question. OPs have failed to prove why they had not provided the occupation certificate or why they have not executed the sale/conveyance deed in favour of the complainant.

14.           Complainant has alleged that she has spent Rs.9,00,000/- on account of removal the defect in the flat in question but complainant has miserably failed to prove her version by leading any cogent and convincing evidence. There is nothing on the file that complainant has spent abovesaid amount on account of removing the defect in the flat in question. On perusal of the photographs Ex.C8 to Ex.C19, it is crystal clear that OPs have used the inferior quality material in flat in question. The said photographs have not been denied by the OPs. Hence, OPs are liable to remove the defects shown in the said photographs. Thus, in view of the above, the act of the OPs amounts to deficiency in service and unfair trade practice. The other reliefs sought by the complainant are not justified.

15.           As a sequel to abovesaid discussion, we partly allow the present complaint and direct the OPs to issue the occupancy certificate and execute sale/conveyance deed of the flat in question in favour of the complainant. We further direct the OPs to remove the defects from the flats in question shown in the photographs Ex.C8 to Ex.C19. We further direct the OPs to pay compensation of Rs.2,00,000/- to the complainant on account of mental agony and harassment suffered by her and Rs.22,000/-for the litigation expense. This order shall be complied within 45 days from the receipt of copy of this order. It is made clear if the awarded amount is not paid within stipulated period then said amount will carry interest @ 9% per annum from the date of announcement of order till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced
Dated:19.06.2024 

  President,       

District Consumer Disputes

Redressal Commission, Karnal.

 

                  (Vineet Kaushik)              (Dr. Suman Singh)

                       Member                             Member